BAKER DEANE
& NUTT

Canberra
Level 1, 1 Farrell Place
Canberra City ACT 2601
Phone: (02) 6230 1999

Queanbeyan
260 Crawford Street
Queanbeyan NSW 2620
Phone: (02) 6299 3999

Tips for Entrepreneurs: Trademarks

Thinking of starting a business? Or already own one? Look out for our new monthly Tips for Entrepreneurs Series that will focus on important things you need to be across and educated on in order to protect and succeed in your business.

Building a brand is of little use if it’s not meticulously protected. Trademarks are real, and they are also really useful if you’re serious about building a mega-brand.

1. Trademarking is a tricky business

It is a very involved subject, and worth reading up on stat! As you develop your brand, particularly in a highly competitive industry, it is recommended to protect yourself against any copycat competitors. Trademarking your brand will give you protection and exclusivity against infringement, identifying your company as the legitimate source of specific goods and services. Sounds complicated, but often the most vital things are, right? Instruction manuals, Business Activity Statements, relationships etc. You can trademark all facets of a brand’s identity, but the process to approval isn’t as simple as covering every single stroke of your logo and phrasing of your tag line. When you submit an application to trademark an aspect of your name, if it is deemed that another business could fairly and reasonably use the same or similar trademark, the application won’t be passed. So do your research and apply accordingly!

2. What’s in a name?

Choosing a business name is one of the most exciting parts of developing your business. You grab a bunch of butcher’s paper, a team of your favourite brainstorming people and get scribbling on hundreds of ideas for the perfect business name. A name gives your business identity, personality, and allows you to develop and grow a brand. But before committing to a name, sending off your brief to designers, and requesting accountants to register the name, you really should check that your winning, shining, glorious chosen name does not infringe on another company’s rights or trademark. Two quick and simple searches can come to the rescue to ensure your name is available. An ASIC search will tell you whether your business/company name is available or similar to another. A trademark search will allow you to take a precursory review on whether your business/company name infringes on someone’s trademark.

3. When things get serious

Ideal things to wake up to: the smell of coffee, the sound of waves gently crashing, the feel of soft linen on skin. Less convenient things to wake up to: overnight mosquito bites, jackhammers on a construction site outside your window, a cease and desist letter.

Ugh. Facing a cease and desist letter from a trade mark holder, either upon launch or immediately following the launch of your brand, will soon see your business go from its highest high to the depths of Mordor. Your business name and logo is what your people will associate with your service or product — so lovingly and vigorously protect them both! And do all you can to avoid that sobering letter in the mail.

4. Get distinctive

Stand out in the crowd with your name and logo so your chances of landing IP protection increase. You’ll struggle to receive trademark protection on a brand name that is considered too close to another which is already registered. If you continue trading under that name, you will remain unprotected, and worse, could be infringing upon the third party owned trademark. Let’s face it — you spend an absolute fortune on marketing, a glorious website, the most stunning branded stationery and the perfect office space. You don’t need IP Australia to come to the party, drop a bomb at your e-door and set you on a temporary rollercoaster from hell. It’s an avoidable disaster. Seek legal advice before taking the plunge.

5. Operating overseas

Wherever your product or service operates, you must cover yourself with a trademark. Registering your trademark overseas will protect your brand in those markets. Sometimes you may need to engage an agent in that particular area to help make this process work, and you will find that legal professionals often already have these agency links to offer. Things can get tricky, and just because you have a trademark on a particular name in Australia doesn’t mean it is covered elsewhere, so be careful to ensure you don’t wind up sued in a foreign jurisdiction. It can all seem a little daunting (because it sort of is!), but if you get in touch with a lawyer, the process can suddenly become a lot less complicated.

6. Keep it classy

Trademarks are categorised into various classes, so you have to do a bit of research to figure out where your business falls. The class determines which sectors you are protected under. The other side of this is that it will also determine which classes you are not protected in.

7. Stay smart

The world of trademarks is a complex one. We recommend having expert guidance and advice from a lawyer to complete your trademark application and to adequately ensure your brand and your business is protected. With new changes at IP Australia that were just put in place on 10 October 2016, the trademark process is now much more cost effective and designed in a way to assist fantastic entrepreneurs like you in protecting your brand. Don’t be overwhelmed, just stay smart and do it the right way!

Links

Trademarks: https://search.ipaustralia.gov.au/trademarks/search/quick

ASIC: https://connectonline.asic.gov.au/RegistrySearch/faces/landing/SearchRegisters.jspx?_ga=1.114497415.125538326.1452911553&_adf.ctrl-state=dgshy7g6c_4

Baker Deane & Nutt